Friday, October 19, 2007

YOUR CONSTITUTIONAL RIGHTS DURING A CRIMINAL INVESTIGATION

WHAT ARE MY RIGHTS?

The Fourth Amendment to the Bill of Rights of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment reads, in part, "No person shall be...compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...." The Fourth and Fifth Amendments provide the foundation for the rights that protect all U.S. citizens from intrusive law enforcement practices.

If an officer violates your rights, any evidence discovered as a result of that violation should be suppressed, and removed from the evidence presented to the factfinder during trial.. An attorney removes this evidence by filing a motion to suppress with the trial judge. As a result, even if an officer obtained a warrant prior to searching, if that warrant is defective or not supported by probable cause, then the evidence discovered during the search can not be used in determining your guilt on the matter. Often times, after the fruits of an illegal detention, interrogation or search are suppressed, the government is left with very little incriminating evidence and the charges are dismissed...

1. Don't Leave Contraband in Plain View

Although law enforcement officers must obtain a warrant before they can conduct a privacy-invading search, any illicit material, plainly seen from a non-intrusive vantage point, is subject to confiscation. Furthermore, with illicit material sitting in the plain sight of police officers, an arrest and valid seach warrant will likely ensue.

2. Do Not Consent to a Search

Many individuals arrested on drug charges could have avoided an arrest by exercising their Fourth Amendment rights. If a law enforcement officer asks for your permission to search, it is usually because: (1) there is not enough evidence to obtain a search warrant; or (2) the officer does not feel like going through the hassle of obtaining a warrant.

Remember, law enforcement officers are trained to intimidate people into consenting to searches. If you consent to a search, officers may search and seize items without further authorization, and if they find contraband, you will be arrested. If you do not consent to a search, the officer must attempt to get a warrant, and during that process, there is a chance you will be released from custody. Refusing to consent to a search does not give the officer legal grounds to obtain a warrant or detain you.

Only a judge or magistrate can provide law enforcement with a search warrant, and only upon a showing of "probable cause." Probable cause requires an officer to articulate information that would cause a reasonable person to believe that a crime has or is being committed, and evidence of that crime is within the object of the search. There are exceptions to the search warrant requirement which permit an officer to search an area without a warrant or consent under certain circumstances. However, the important thing for you to remember is to never consent to a search, or talk with an officer without an attorney present.

If an officer asks to search you, an area belonging to you, or an area which you are authorized to control, you should respond in the following manner:

"I do not consent to a search of my [person, baggage, purse, luggage, vehicle, house, blood, etc.] I do not consent to this contact and do not want to answer any questions. If I am not under arrest, I would like to go now (or be left alone)."

3. Don't Answer Questions Without Your Attorney Present

You should always exercise the right to remain silent, whether or not your are merely under investigation or arrested. Anything you say to law enforcement officers, reporters, cellmates, or even your friends, can be used as evidence against you. Remember, you have the right to have an attorney present during questioning.

4. Determining if You Can Leave

Unless you are being detained, in custody, or under arrest, you may terminate an encounter with law enforcement. If you cannot determine if it is appropriate to leave, ask, "Am I under arrest or otherwise detained?" If the answer is no, you are free to leave.

An officer can temporarily detain you, without arresting you, if he has "reasonable suspicion" that you are involved in criminal activity. Therefore, in order for the detention to be legal, the officer must be able to later articulate to a judge objective facts that would have caused a reasonable person to suspect that you were involved in criminal activity at the time you were detained. In addition, the officer may perform a "pat down" or "frisk" on you during the detention if he has reasonable suspicion that you are armed. During a pat down, an officer may only reach into your pockets if he pats something that feels like a weapon. If an officer attempts to contact or question you, you should politely say: "I do not consent to this contact and I do not want to answer any questions. If I am not under arrest I would like to go now (or be left alone)." Thereafter, if you are arrested, you should again refuse a search of any kind and refuse to answer any questions. At this point, you should insist on speaking to an attorney as soon as possible.

5. Do Not Be Hostile; Do Not Physically Resist

There are times when individuals politely assert their rights and refuse to consent to a search but the officers nonetheless proceed to detain, search, or arrest them. In such cases, it is important not to physically resist. Rather, you should reassert your rights.

6. Informing on Others

Law enforcement officers and prosecutors often try to pressure individuals into providing information that would lead to the arrest and conviction of others. Threats and promises by police and prosecutors should be viewed with caution and skepticism. A decision to provide incriminating information against someone else should only be made after consulting with an experienced criminal defense attorney and examining one’s own conscience.